OPINION NO. OAG 15-85,

Wisconsin Attorney General Opinions

9 May 1985

Open Meeting;
Schools And School Districts;

In exceptional cases,
Section 19.85(1)(f), Stats.,
would permit a school board to reconvene
into closed session to interview applicants
for a vacant position on such board, but
appointment should be made in open session.

Section 19.85(1)(c) would not permit a closed
session for purposes of interviewing
applicants for a vacant school board
position and to make appointment thereto.

JOHN E. FRYATT,
District Attorney Waukesha County

You request my opinion whether a governmental
body such as a school board of a common
school district, which has the power to
fill a vacancy on such body pursuant to
Section 17.26(1), Stats., can, at a duly
noticed meeting, reconvene in closed session
under exemptions contained in Section
19.85(1)(c) and (f) to interview interested
persons and to appoint a successor.

Exemptions 19.85(1)(c) and 19.85(1)(f)
provide:

19.85(1)(c)

     Considering employment, promotion,
     compensation or performance
     evaluation data of any public
     employe over which the
     governmental body has jurisdiction
     or exercises responsibility. . . .

19.85(1)(f)

     Considering financial, medical, social
     or personal histories or disciplinary
     data of specific persons, preliminary
     consideration of specific personnel
     problems or the investigation of
     charges against specific persons
     except where paragraph 19.85(1)(b)
     applies which, if discussed in public,
     would be likely to have a substantial
     adverse effect upon the reputation of
     any person referred to in such
     histories or data, or involved in such
     problems or investigations.

In my opinion a governmental body cannot
reconvene in closed session to interview
potential candidates unless the information
solicited and discussions involve

     financial, medical, social or
     personal histories or disciplinary
     data of specific persons . . .
     which, if discussed in public,
     would be likely to have a
     substantial adverse effect upon the
     reputation of any person referred
     to in such histories or data . . .
 

Section 19.85(1)(f), Stats.

As I stated in OAG 9-76 in discussing
Section 66.77(4)(e), Stats. (1975):

 

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To justify considering individual
qualifications in closed session,
it is not sufficient that personal
information is the subject of discussion,
even if public discussion of that information
might result in some damage to reputations.

The exception applies only where such
discussion in open session might unduly
damage reputations.

State ex rel. Youmans v. Owens (1965),
28 Wis.2d 672, 685,
137 N.W.2d 470,

held that, in determining whether public
disclosure might unduly damage reputations,
the interest of the public in being informed
on public matters must be balanced against
harm to reputations which would likely result
from public airing.

It would be extremely unusual that a general
discussion of qualifications of potential
candidates for a school board position
might involve undue damage to reputations
or even danger of possible undue damage.

It would appear to me, that before a board
could legally convene in closed session in
reliance upon the exception, at least one
board member would have to have actual
knowledge of information which he or she
reasonably believed would unduly damage
reputations if divulged in open session
and that there was probability that
such information would be divulged.

The present test, under Section 19.85(1)(f),
requires a determination that the information
involved "would be likely to have a
          substantial adverse effect
          upon the reputation"
involved.

This is a much more demanding test than was
applicable under the predecessor statute,
Section 66.77(4)(e), Stats. (1975), which
used language "which may unduly damage
reputations."

And see
State ex rel. Youmans v. Owens,
28 Wis.2d 672,
137 N.W.2d 470 (1965).

A governmental body should utilize a closed
session only in the exceptional case.

The purpose behind interviewing potential
appointees is often to ascertain how such
persons stand with respect to policy and
political issues, rather than to inquire
into "financial, medical, social or
      personal histories or disciplinary
      data of specific persons . . . ."

Furthermore, although closure might be
warranted as to some part of an interview
of a specific person seeking appointment,
it would not be warranted with respect
to all discussion with said person.

With respect to certain other persons
seeking appointment, closure would
not be warranted at all.

The governmental body, not the individual,
has the power to open or close a meeting.

State ex rel. Bilder v. Delavan Tp.,
112 Wis.2d 539, 558,
334 N.W.2d 252 (1983).

 

74 OAG 70 71 72 73

In limited situations under exemption
19.85(1)(b), an employe may
demand that a meeting be
held in open session.

Even where closure is permissible, discussion
must be limited to matters which
relate to the exempt area.

Section 19.85(1) provides in part:

Any meeting of a governmental body, upon
motion duly made and carried, may be convened
in closed session under one or more of the
exemptions provided in this Section.

The motion shall be carried by a majority
vote in such manner that the vote of each
member is ascertained and recorded in the
minutes.

No motion to convene in closed session may be
adopted unless the chief presiding officer
announces to those present at the meeting at
which such motion is made, the nature of the
business to be considered at such closed
session, and the specific exemption or
exemptions under this subsection by which
such closed session is claimed to be
authorized.

Such announcement shall become part
of the record of the meeting.

No business may be taken up at any closed
session except that which relates to matters
contained in the chief presiding officer's
announcement of the closed session.

As to whether the actual vote to appoint can
be taken in closed session, Cities Service
Oil Company v. Board of Appeals, 21 Wis.2d
516, 124 N.W.2d 809 (1963), held that votes
which are "an integral part" of the closed
deliberations may be taken in closed session.

Thus, for example, a school board could,
citing exemption 19.85(1)(c), convene in
closed session to both interview and hire an
employe, i.e., a teacher or administrator,
since the act of hiring is an integral part
of the reason for which the closed session is
authorized, namely considering employment.

I am of the opinion, however, that neither
exemption 19.85(1)(c) nor 19.85(1)(f)
authorizes a school board to make an
actual appointment of a new member
in closed session.

Exemption 19.85(1)(c) does not apply because
I do not consider the act of a governmental
body to fill a vacant office pursuant to
Section 17.26(1) to be "considering
employment" as that term
is used in Section 19.85(1)(c).

Exemption 19.85(1)(f) does not apply because
the vote to appoint is not an integral part
of deliberations which may only be closed for
the duration of discussions about financial,
medical, social, personal histories or
disciplinary data which would be likely
to substantially and adversely affect
the reputation of people involved.

 

74 OAG 70 71 72 73

The purpose of the open meetings law
is to give the public the fullest and
most complete information regarding the
affairs of government as is compatible with
conduct of governmental business.

Martin v. Wray,
473 F.Supp. 1131, 1137 (E.D. Wis. 1979).

Section 19.81(2) provides:

     To implement and ensure the public
     policy herein expressed, all
     meetings of all state and local
     governmental bodies shall be
     publicly held in places reasonably
     accessible to members of the public
     and shall be open to all citizens
     at all times unless otherwise
     expressly provided by law."
 

If there is substantial question as to
whether closure is permitted under a
given exemption, the meeting should
be held in open session.

BCL:RJV
 

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